Miami Criminal Defense Attorney

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Monday, September 2, 2013

For (@ least) the last six years the US govt, in an effort to thwart drug dealing, has been tracking your cellphone usage. The program is called "the Hemisphere Project" and you can read about it here: (http://www.nytimes.com/2013/09/02/us/drug-agents-use-vast-phone-trove-eclipsing-nsas.html?pagewanted=1&_r=2&smid=tw-nytimes&partner=rss&emc=rss&).

Tuesday, August 27, 2013

The latest in the Zimmerman saga: his attorneys are seeking to have such costs as depositions and expert witness fees expended in the course of defending his case reimbursed by the State of Florida post-verdict. The entire article (as published in USA Today) can be found here.

Friday, June 21, 2013

Alleyne was
charged with using or carrying a firearm in relation to a crime of violence
which carries a 5-year mandatory minimum sentence, that increases to a 7-year
minimum “if the firearm is brandished,” and to a 10-year minimum “if the
firearm is discharged.”

“In
convicting Alleyne, the jury form indicated that he had “[u]sed or carried a
firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” When the presentence
report recommended a 7-year sentence on the §924(c) count, Alleyne objected,
arguing that the verdict form clearly indicated that the jury did not find
brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence
based on a sentencing judge’s finding of brandishing would violate his Sixth
Amendment right to a jury trial. The District Court overruled his objection,
relying on this Court’s holding in Harris v. United States, 536 U. S. 545, (In 2002, the Court decided in Harris v. United
States that Apprendi (see
below) did not apply to facts that would increase a defendant’s
mandatory minimum sentence, and therefore that a judge could
constitutionally decide to apply a mandatory minimum sentence on the basis of facts
not proven to a jury) that judicial fact finding that increases the mandatory
minimum sentence for a crime is permissible under the Sixth Amendment. The
Fourth Circuit affirmed, agreeing that Alleyne’s objection was foreclosed by
Harris.”

The Court in a five-to-four decision by Justice Thomas (joined
by Justices Ginsburg, Breyer, Sotomayor, and Kagan), held (on June 17, 2013)
“that the defendant’s seven-year
mandatory minimum sentence violated his Sixth Amendment right to trial by jury
because the question of brandishing was
never submitted to the jury. The Court’s opinion explains that the
logic of Apprendi (Apprendi
v. New Jersey stands for the fact that any facts which increase a
criminal defendant’s maximum possible sentence are considered “elements” of the
criminal offense that must be proved to a jury beyond a reasonable doubt) requires a jury to find all facts that fix
the penalty range of a crime. According to the Court, the mandatory minimum is just as important to
the statutory range as is the statutory maximum. The Court made clear
that its holding was not designed to limit the discretion of the trial judge in
imposing sentences within the range defined by the statutory maximum and
mandatory minimum. The Court therefore vacated Alleyne’s sentence and
remanded the case for resentencing in line with the jury’s verdict.” See ScotusBlog for full cite.

What does this mean to you and me?It means that the Court finally recognized
that all of the evidence of a crime must be presented to the jury in order that
the judge consider the same in the sentencing phase (if you are found guilty
that is).If you believe that you are
facing an illegal sentence, contact a criminal defense attorney.

Wednesday, June 19, 2013

A bizarre twist on your right to remain silent:The Fifth Amendment Provides: "No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation."

However, in Salinas v. Texas, the Supreme Court held yesterday that silence during a "pre-custodial" interrogation is admissible as evidence of guilt.The Court further stated that: "Petitioner’s Fifth Amendment claim fails because he
did not expressly invoke the privilege against self-
incrimination in response to the officer’s question. It has
long been settled that the privilege “generally is not self-
executing” and that a witness who desires its protection
“ ‘must claim it.’ ...Because petitioner was required
to assert the privilege in order to benefit from it, the
judgment of the Texas Court of Criminal Appeals rejecting
petitioner’s Fifth Amendment claim is affirmed.."

What does this mean to you? In order to invoke your right to remain silent you now may need to speak up.

If you have been charged with a crime, hire an experienced criminal defense attorney and remember, you do have a right to remain silent, however, apparently you must now first invoke it.

Tuesday, June 4, 2013

On June 3, 2013 the U.S. Supreme Court ruled in
Maryland v. King (12-207) that “When officers make an arrest supported by
probable cause to hold for a serious offense and they bring the suspect to the
station to be detained in custody, taking and analyzing a cheek swab of the
arrestee’s DNA is, like fingerprinting and photographing, a legitimate police
booking procedure that is reasonable under the Fourth Amendment.” (at 28)

The
5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by
Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia
filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and
Kagan.

It is the opinion of the majority, as is evidenced above, that upon arrest we have not 4th Amendment right (against search and seizure) to prevent DNA testing.

In the dissent (written by Scalia) he stated:"The most regrettable aspect
of the suspicionless search that occurred here is that it proved to be
quite unnecessary. All parties concede that it would have been entirely
permissible, as far as the Fourth Amendment is concerned, for Maryland
to take a sample of King’s DNA as a consequence of his conviction for
second-degree assault. So the ironic result of the Court’s error is
this: The only arrestees to whom the outcome here will ever make a
difference are those who have been acquitted of the crime of arrest (so
that their DNA could not have been taken upon conviction). In other
words, this Act manages to burden uniquely the sole group for whom the
Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."Scalia concluded stating: “ ... I doubt that the proud men who wrote the charter of our liberties would have
been so eager to open their mouths for royal inspection. I therefore dissent,
and hope that today’s incursion upon the Fourth Amendment, like an earlier one,
will some day be repudiated.”

The link to the case can be found here. If you have been arrested in Miami-Dade, Palm Beach or Broward County, you can find your attorney here.

The issue in the case was: "DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?"

The answer: 'NO.'

The Court began with the premise that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions." The court further stated "we have carefully reviewed and
considered the decisional law that addresses this unresolved Fourth
Amendment issue, and we conclude that the line of cases requiring law
enforcement to obtain a search warrant before accessing the data,
information, and content of an electronic device cell phone that is
removed from a defendant at the time of arrest is, quite simply, more
persuasive."

If you have been arrested, you have rights against unreasonable search and seizure. If you think that your rights have been violated, contact a Criminal Defense Attorney.

Friday, April 26, 2013

What is an illegal sentence? An illegal sentence is one which, when imposed is violative of our Constitution in that it constitutes cruel and unusual punishment when imposed.

The Third District Court of Appeal, State of Florida on April 24, 2013 most recently advised us as to what exactly constitutes an "illegal sentence" and the manner in which to go about rectifying the same in Lightsey v. State of Florida.

Here, the trial Court imposed a life sentence on a juvenile (16 years of age) for a robbery. The Court stated that this sentence clearly constituted as an illegal sentence. Further, it instructed as to how one may correct the same providing a procedural framework for all of us in the criminal field (see Rule 3.800(b)). "Rule 3.800(b)(1) provides that a motion to correct an illegal sentence may be filed in the trial court during the time allowed for the notice of filing a notice of appeal of sentence... If a motion is filed under subdivision (b)(1), the motion shall stay rendition of the sentencing order. Further, rule 3.800(b)(2) provides that if an appeal is pending, appellate counsel is permitted to file and serve a motion to correct illegal sentence in the trial court before the party's first appellate brief is served, and it a motion is filed in the trial court, appellate counsel shall file in the appellate court a notice of pending motion to correct an illegal sentence, which notice extends the time for filing the brief."

Accordinly, on should: (1) Bring the sentencing error to the attention of the trial court at the sentencing hearing OR in a motion filed post sentencing; (2) If this is not accomplished, file a motion to correct an illegal sentence under rule 3.800(b)(1) BEFORE a notice of appeal is file; (3) Under 3.800(b)(2), prior to filing the defendant's initial brief, file a motion to correct illegal sentence in the trial court AND notify the Appellate Court of the pending motion to correct illegal sentence.